All’s Fair In Love And Disappointed Animals?

[A] lot of what BuzzFeed traffics in — the fun stuff, that is — emerges on Tumblr or Pinterest or 4chan. Users of those sites surface photos that in some cases have been shared around the Internet for a decade. In those cases, even if BuzzFeed editors try to track down the creator, which Peretti assures me they do, they probably won't find whoever uploaded the photo of every obese cat. … With these kinds of posts, Peretti is willing to make a Fair Use argument that goes like this. First off, the Fair Use limitation and exception to exclusive copyright is notoriously fuzzy. Let's quote from Wikipedia on this one point because the explanation there is reasonable and understandable:

To justify the use as fair, one must demonstrate how it either advances knowledge or the progress of the arts through the addition of something new. A key consideration is the extent to which the use is interpreted as transformative, as opposed to merely derivative.

So, Peretti told me that he considers a BuzzFeed list — its sequencing, framing, etc — to be a transformative use of photos. That is to say, including that unattributed photo of the otter in that list was OK because its inclusion as an "extremely disappointed" animal transformed the nature of the photo. "It's a question," Peretti said, "of when lots of little things add up to a transformation as opposed to a copyright violation."

"I would expect an interesting response from a judge if I argued that putting a caption on a photo was transformative use for the purposes of fair use," says UVA professor, copyright expert, and occasional Slate contributor Thomas Nachbar. Nachbar adds that a fair use argument doesn’t simply come down to whether something is transformative—it can also depend on whether the use is commercial or nonprofit and educational, as well as the amount of the original work that’s being used and the likely effect the use has on the original work’s value. A legal proceeding would have to consider all those factors together.